2019 IL 123201

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 123201) 

NOAH WINGERT, a Minor, by His Mother and Next Friend, 

Cassandra Lee Wingert, Appellant, v. PATSY A. HRADISKY, 

Special Administrator of the Estate of Kevin Jatczak, Deceased, Appellee.

Opinion filed March 21, 2019.

JUSTICE THOMAS delivered the judgment of the court. 

Chief Justice Karmeier and Justice Garman concurred in the judgment and 

opinion. 

Justice Burke concurred in part and dissented in part, with opinion, joined by 

Justice Neville.

Justice Theis concurred in part and dissented in part, with opinion, joined by 

Justice Kilbride. 
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OPINION

¶ 1 This is a direct appeal from a judgment of the circuit court of Cook County 

finding section 25(b)(2) of the Drug Dealer Liability Act (Act) (740 ILCS 

57/25(b)(2) (West 2016)) facially unconstitutional. 

¶ 2 BACKGROUND

¶ 3 Drug Dealer Liability Act

¶ 4 We begin with an overview of the Act. Effective in 1996 (see Pub. Act 89-293 

(eff. Jan. 1, 1996)), the Act mirrors the Model Drug Dealer Liability Act that was 

provided to state legislators in the early 1990s by the American Legislative 

Exchange Council. Rosemary E. Williams, Trial of Suit Under United States’ Drug 

Dealer Liability Acts, 145 Am Jur. Trials 1, § 2 (Sept. 2018 Update); see Model 

Drug Dealer Liability Act (Model Act) (Model Act, Model DDLA.com, 

http://www.modelddla.com/Model_Act.htm (last visited Oct. 26, 2018) 

[https://perma.cc/CA9Y-X9JP]). At least 18 states and one territory of the United 

States have adopted the Model Act or some version of it. Williams, supra, § 2. 

¶ 5 The stated purposes of the Act are (1) “to provide a civil remedy for damages to 

persons in a community injured as a result of illegal drug use,” (2) “to shift, to the 

extent possible, the cost of the damage caused by the existence of the illegal drug 

market in a community to those who illegally profit from that market,” (3) “to 

establish the prospect of substantial monetary loss as a deterrent to those who have 

not yet entered into the illegal drug distribution market,” and (4) “to establish an 

incentive for drug users to identify and seek payment for their own drug treatment 

from those dealers who have sold drugs to the user in the past.” 740 ILCS 57/5 

(West 2016). 

¶ 6 Persons who may bring an action for damages include: 

“(1) A parent, legal guardian, child, spouse or sibling of the individual drug 

user.

(2) An individual who was exposed to an illegal drug in utero. 
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(3) An employer of the individual drug user. 

(4) A medical facility, insurer, governmental entity, employer, or other 

entity that funds a drug treatment program or employee assistance program for 

the individual drug user or that otherwise expended money on behalf of the 

individual drug user. 

(5) A person injured as a result of the willful, reckless, or negligent actions 

of an individual drug user.” Id. § 25(a) (West 2016).1

¶ 7 The Act identifies two potential defendants. Under section 25(b)(1), a plaintiff 

may seek damages from “[a] person who knowingly distributed, or knowingly 

participated in the chain of distribution of, an illegal drug that was actually used by 

the individual drug user.” Id. § 25(b)(1). The parties here refer to section 25(b)(1) 

as the “Direct Liability Provision.”

¶ 8 Under section 25(b)(2), a plaintiff may also seek damages from 

“[a] person who knowingly participated in the illegal drug market if: 

(A) the place of illegal drug activity by the individual drug user is within 

the illegal drug market target community of the defendant;

(B) the defendant’s participation in the illegal drug market was 

connected with the same type of illegal drug used by the individual drug 

user; and 

(C) the defendant participated in the illegal drug market at any time 

during the individual drug user’s period of illegal drug use.” Id. § 25(b)(2). 

¶ 9 The “place of illegal drug activity” referenced in section 25(b)(2)(A) is defined 

as “each Illinois Representative District in which the individual possesses or uses 

an illegal drug or in which the individual resides, attends school, or is employed 

during the period of the individual’s illegal drug use, unless the defendant proves 

otherwise by clear and convincing evidence.” Id. § 15. 

 1

An individual drug user may also bring an action for damages, but recovery is limited (740 

ILCS 57/30 (West 2016)) and subject to principles of comparative responsibility (id. § 50). The 

instant case does not involve a claim by an individual drug user.
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¶ 10 The “illegal drug market target community of the defendant,” also referenced in 

section 25(b)(2)(A), is determined by the degree of the defendant’s participation in 

the illegal drug market, as measured by the amount of drugs possessed or 

distributed. Id. § 40. Where the defendant’s participation in the illegal drug market 

involves an amount of drugs at the lower end of the statutory scale—a so-called 

“Level 1 offense” (id. § 15)—the illegal drug market target community is the 

“Illinois Representative District in which the defendant’s place of participation is 

situated.” Id. § 40(1). As the degree of participation in the drug market increases 

based on the amount of drugs possessed or distributed, the illegal drug market 

target community also increases in size. Thus, where a defendant’s participation in 

the illegal drug market constitutes a “Level 4 offense,” the highest level (id. § 15), 

the illegal drug market target community of the defendant is the entire state. Id.

§ 40(4). 

¶ 11 Because section 25(b)(2) requires that the area or community in which the 

illegal drug activity of the individual drug user took place must be within the area or 

community in which the defendant drug dealer operated, the parties here refer to 

section 25(b)(2) as the “Area Liability Provision.” 

¶ 12 A plaintiff may recover both economic and noneconomic damages proximately 

caused by an individual’s illegal drug use, as well as exemplary damages, 

reasonable attorney fees, and costs of suit. Id. § 25(c). A person subject to liability 

under the Act has a right of contribution against another person subject to liability 

under the Act. Id. § 55. 

¶ 13 Proof of the defendant’s participation in the illegal drug market must be shown 

by clear and convincing evidence, while all other elements must be shown by a 

preponderance of the evidence. Id. § 60(a). A person against whom recovery is 

sought who has a criminal conviction under state drug laws or under the federal 

Comprehensive Drug Abuse and Prevention Control Act of 1970 (21 U.S.C. § 801 

et seq.) “is estopped from denying participation in the illegal drug market.” 740 

ILCS 57/60(b) (West 2016). 

¶ 14 The Act generally requires that a claim must be brought not more than two 

years after accrual of the cause of action (id. § 70) and contains a severability 

provision pursuant to section 1.31 of the Statute on Statutes (5 ILCS 70/1.31 (West 

2016)). 740 ILCS 57/85 (West 2016). 
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¶ 15 The General Assembly made numerous findings, set forth in section 10 of the 

Act, in which it recognized, inter alia, the cost to individuals, families, employers, 

and society of coping with the illegal drug trade; the necessity of using the civil 

justice system to provide an avenue of compensation for those injured by the 

marketing and distribution of illegal drugs; and the barriers to recovery for injured 

parties under existing tort law. Id. § 10. 

¶ 16 With this overview of the Act, we turn to the litigation at issue.

¶ 17 Wingert v. Hradisky 

¶ 18 This case arises out of the death of Michael Neuman from a drug overdose on 

June 9, 2012. Plaintiff is Neuman’s minor son, Noah Wingert, by his mother and 

next friend, Cassandra Lee Wingert. Defendant is Patsy A. Hradisky, special 

administrator of the Estate of Kevin Jatczak, deceased.2 Plaintiff sued Jatczak for 

damages under the provisions of the Act. 

¶ 19 Count I of the fourth amended complaint alleged that, on or about June 9, 2012, 

and prior thereto, Jatczak owned certain premises in the city of Berwyn, at which he 

also resided; Jatczak distributed and/or sold Neuman and others illegal drugs, 

including cocaine, heroin, and opiates, at the premises; Jatczak used illegal drugs at 

the premises with Neuman and others; Jatczak knowingly participated in the illegal 

drug market; and as a direct and proximate result of the use, consumption, and/or 

distribution of illegal drugs, Neuman was then and there severely injured, resulting 

in his death on June 9, 2012. The complaint alleged that Noah Wingert has been 

permanently deprived of his father’s support, love, society, affection, 

companionship, and services and has suffered emotional distress and mental 

anguish. 

¶ 20 Defendant filed a motion to dismiss under section 2-615 of the Code of Civil 

Procedure (735 ILCS 5/2-615 (West 2016)), asserting that the Act violates the due 

process clauses of both the federal and state constitutions by imposing an 

irrebuttable presumption of causation that has no rational connection between the 

fact requiring proof—the defendant’s knowing participation in the illegal drug 

 2

Plaintiff also named as defendants Julie Holda and Simone Holda. They are not a part of this 

appeal.
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market—and the fact presumed—the defendant caused the plaintiff’s injuries. 

Defendant also argued that the Act violates due process by utilizing a market share 

theory of liability purportedly rejected by this court in Smith v. Eli Lilly & Co., 137 

Ill. 2d 222 (1990).3 

¶ 21 The trial court denied defendant’s motion as to section 25(b)(1) (the Direct 

Liability Provision) but granted defendant’s motion as to section 25(b)(2) (the Area 

Liability Provision). The court found section 25(b)(2) violates due process and 

severed it from the Act. The trial court made no Rule 18 findings at that time. See 

Ill. S. Ct. R. 18 (eff. Sept. 1, 2006). 

¶ 22 Plaintiff was later granted leave to file a fifth amended complaint, realleging 

previously dismissed counts to preserve the same for appeal. Count I against 

Jatczak remained the same but was necessarily limited by the court’s constitutional 

ruling to a claim under section 25(b)(1) of the Act. As to that count, defendant filed 

a motion for summary judgment arguing that plaintiff failed to present any 

evidence that could support a finding that Jatczak knowingly provided or

distributed the illegal drugs to Neuman that caused his overdose. Plaintiff 

responded that defendant’s summary judgment motion should be denied because 

section 25(b)(1) of the Act does not require proof that Jatczak provided the drugs 

that caused Neuman’s overdose. All that is required, plaintiff argued, is that Jatczak 

knowingly distributed, or knowingly participated in the chain of distribution of, an 

illegal drug that Neuman actually used. The trial court granted defendant’s motion 

for summary judgment.

¶ 23 Plaintiff appealed directly to this court pursuant to Rule 302(a). Ill. S. Ct. R. 

302(a) (eff. Oct. 4, 2011). We retained jurisdiction and remanded the matter to the 

trial court for the limited purpose of making and recording findings in compliance 

with Rule 18 (Ill. S. Ct. R. 18 (eff. Sept. 1, 2006)). The trial court’s order on remand 

first clarified that, although defendant’s constitutional challenge was raised in a 

section 2-615 motion to dismiss, the proper procedural vehicle is a motion to 

dismiss under section 2-619(a)(9) (735 ILCS 5/2-619(a)(9) (West 2016)) and that 

the trial court treated defendant’s motion as such. As to the merits, the trial court 

 3

Pursuant to Rule 19 (Ill. S. Ct. R. 19 (eff. Sept. 1, 2006)), defendant notified the Illinois 

Attorney General of the constitutional challenge to the Act. The Attorney General elected not to 

intervene in the case.
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ruled that the Act institutes a form of market share liability that runs afoul of this 

court’s decision in Smith. On this basis, the trial court found section 25(b)(2) 

unconstitutional on its face. The trial court also found section 25(b)(2) 

unconstitutional on its face as violative of substantive due process because the 

statute arbitrarily presumes that a defendant who participates in the illegal drug 

market caused the plaintiff’s injury. 

¶ 24 ANALYSIS

¶ 25 I. Section 25(b)(2)—Area Liability Provision

¶ 26 The trial court below held that section 25(b)(2) of the Act violates substantive 

due process under the state and federal constitutions because it arbitrarily and 

irrationally presumes that a defendant who participates in the illegal drug market 

caused the plaintiff’s injury. In reaching this result, the trial court focused on the 

three requirements set forth in section 25(b)(2), which permits a plaintiff to recover 

damages from a person who knowingly participated in the illegal drug market 

where:

“(A) the place of illegal drug activity by the individual drug user is within 

the illegal drug market target community of the defendant; 

(B) the defendant’s participation in the illegal drug market was connected 

with the same type of illegal drug used by the individual drug user; and 

(C) the defendant participated in the illegal drug market at any time during 

the individual drug user’s period of illegal drug use.” 740 ILCS 57/25(b)(2) 

(West 2016). 

According to the trial court, proof of the facts set forth in subsections (A), (B), and 

(C) above has no rational relationship to the presumed fact—that the defendant

drug dealer caused the plaintiff’s injuries. 

¶ 27 Plaintiff argues that the trial court’s reasoning is flawed because the Act does 

not create a presumption of causation; instead, the Act abolishes the requirement of 

causation, and the only question is whether the legislature could lawfully do so. 

Plaintiff would answer that question in the affirmative. In response, defendant 
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initially argues that section 25(b)(2) creates an unconstitutional presumption of 

causation and that imposing liability under such circumstances tramples 

foundational principles of our tort system and violates due process. 4 In the 

alternative, defendant argues that, if plaintiff is correct and section 25(b)(2) 

abolishes the causation element altogether, then section 25(b)(2) still violates 

substantive due process principles because imposing liability in the absence of “any 

causative link” between the parties is fundamentally unfair.

¶ 28 We begin with the presumption that the Act is constitutional. People v. Ligon, 

2016 IL 118023, ¶ 11. The party challenging the Act—here, defendant—carries the 

burden of clearly rebutting this strong judicial presumption. People v. Rizzo, 2016 

IL 118599, ¶ 23; In re Rodney H., 223 Ill. 2d 510, 516 (2006). A facial challenge to 

a statute is the most difficult challenge to mount successfully because the 

challenger must establish that under no circumstances would the statute be valid. 

Rizzo, 2016 IL 118599, ¶ 24. “Facial invalidation is, manifestly, strong medicine 

that has been employed by the court sparingly and only as a last resort.” (Internal 

quotation marks omitted.) Pooh-Bah Enterprises, Inc. v. County of Cook, 232 Ill. 

2d 463, 473 (2009). Our duty is to uphold the constitutionality of the Act if 

reasonably possible to do so, resolving any doubts in favor of the Act’s validity. 

Rizzo, 2016 IL 118599, ¶ 23. The constitutionality of the Act is a question of law, 

and thus we review the circuit court’s conclusion de novo. Id.

¶ 29 The constitutional guarantee of due process is implicated “whenever the State 

engages in conduct towards its citizens deemed oppressive, arbitrary or 

unreasonable.” People v. McCauley, 163 Ill. 2d 414, 425 (1994); see also County of 

Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998) (“ ‘touchstone of due process is 

protection of the individual against arbitrary action of government’ ” (quoting 

Wolff v. McDonnell, 418 U.S. 539, 558 (1974))). Due process has two aspects: 

procedural and substantive. “Procedural due process bars governmental action that 

infringes upon a protected interest when such action is arbitrary because it was not 

preceded by procedural safeguards,” whereas “[s]ubstantive due process bars 

governmental action that infringes upon a protected interest when such action is 

 4

Because defendant does not argue that our state due process clause (Ill. Const. 1970, art. I, § 2) 

provides greater protection than its federal counterpart (U.S. Const., amend. XIV), we will treat the 

two clauses as coextensive. See People v. Gray, 2017 IL 120958, ¶ 56; In re Marriage of Miller, 227 

Ill. 2d 185, 195-96 (2007).
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itself arbitrary.” People v. Pepitone, 2018 IL 122034, ¶ 13; see also Lewis, 523 U.S. 

at 846 (due process protects against the denial of procedural fairness and against 

government power arbitrarily exercised). The instant case presents a substantive 

due process claim, and defendant does not assert that section 25(b)(2) of the Act 

regulates or restricts a liberty interest that constitutes a fundamental right. 

Therefore, the proper gauge for defendant’s substantive due process claim is the 

rational basis test. People v. Hollins, 2012 IL 112754, ¶ 15. Under this test, “[a] 

statute will be upheld *** so long as it bears a rational relationship to a legitimate 

legislative purpose and is neither arbitrary nor unreasonable.” Id.

¶ 30 Here, there is no question that the legislative purpose informing the Act is 

legitimate. Indeed, section 5 of the Act states explicitly the Act’s purpose, and we 

find nothing the least bit objectionable or unreasonable in the language of that 

provision: 

“The purpose of this Act is to provide a civil remedy for damages to persons in 

a community injured as a result of illegal drug use. These persons include 

parents, employers, insurers, governmental entities, and others who pay for 

drug treatment or employee assistance programs, as well as infants injured as a 

result of exposure to drugs in utero (‘drug babies’). This Act will enable them to 

recover damages from those persons in the community who have joined the 

illegal drug market. A further purpose of the Act is to shift, to the extent 

possible, the cost of the damage caused by the existence of the illegal drug 

market in a community to those who illegally profit from that market. The 

further purpose of the Act is to establish the prospect of substantial monetary 

loss as a deterrent to those who have not yet entered into the illegal drug 

distribution market. The further purpose is to establish an incentive for drug 

users to identify and seek payment for their own drug treatment from those 

dealers who have sold drugs to the user in the past.” 740 ILCS 57/5 (West 

2016). 

The question therefore becomes whether section 25(b)(2) bears a reasonable 

relationship to this purpose and is neither arbitrary nor unreasonable. For the 

reasons that follow, we conclude that section 25(b)(2) does not meet this standard, 

as it is both arbitrary and unreasonable. 
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¶ 31 We initially note that, contrary to both defendant’s argument and the trial 

court’s analysis below, section 25(b)(2) does not create an irrebuttable presumption 

of causation. According to defendant, section 25(b)(2) presumes that a defendant 

caused the plaintiff’s injuries through proof only of defendant’s knowing 

participation in the illegal drug market. Citing Tot v. United States, 319 U.S. 463 

(1943), and Western & Atlantic R.R. v. Henderson, 279 U.S. 639 (1929), defendant 

argues that the Act violates due process because there is “no rational connection 

between the facts proved and the ultimate fact presumed.” Tot, 319 U.S. at 467. 

¶ 32 In Tot, the statute expressly provided that possession of a firearm by a person 

convicted of a crime of violence “ ‘shall be presumptive evidence’ ” that the 

firearm was shipped in interstate commerce in violation of the Federal Firearms 

Act. Id. at 464 (quoting 15 U.S.C. § 902(f) (1940)). In Henderson, the statute 

expressly provided that, in claims against a railroad company for damage to person 

or property, unless the company proved that their agents exercised ordinary care 

and diligence, “ ‘the presumption in all cases [will be] against the company.’ ” 

Henderson, 279 U.S. at 640 (quoting Georgia Civil Code § 2780). Defendant here 

can point to no similar language in the Act creating a presumption of causation. 

Instead, the Act creates a new cause of action that does not require proof of 

causation, as that term is typically understood in the common law of negligence. 

¶ 33 Standing alone, this fact does not render section 25(b)(2) constitutionally 

infirm. Indeed, “[n]o person has a vested interest in any rule of law, entitling him to 

insist that it shall remain unchanged for his benefit.” Grand Trunk Western Ry. Co. 

v. Industrial Comm’n, 291 Ill. 167, 173 (1919). The General Assembly may depart 

from the common law and adopt new causes of action that have no counterpart in 

the common law or equity. Id. at 174; Belleville Toyota, Inc. v. Toyota Motor Sales, 

U.S.A., Inc., 199 Ill. 2d 325, 335 (2002); see also People v. Gersch, 135 Ill. 2d 384, 

395 (1990) (legislature has the “inherent power to repeal or change the common 

law, or do away with all or part of it”). The General Assembly has “broad power to 

determine whether a statute that restricts or alters an existing remedy is reasonably 

necessary to promote the general welfare.” Michigan Avenue National Bank v. 

County of Cook, 191 Ill. 2d 493, 519-20 (2000); see also Chicago National League 

Ball Club, Inc. v. Thompson, 108 Ill. 2d 357, 364 (1985) (“legislature has broad 

discretion to determine not only what the public interest and welfare require, but to 

determine the measures needed to secure such interest”). Although causation is 
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considered a “fundamental precept of tort law” (Smith, 137 Ill. 2d at 260), causation 

“is not an end of the legal system, but rather the means by which the legal system 

achieves its purposes,” and thus may be modified where it proves inadequate. 

(Internal quotation marks omitted.) Id. at 271 (Clark, J., concurring in part and 

dissenting in part, joined by Calvo, J.).

¶ 34 All of that said, section 25(b)(2) goes far beyond simply relieving the plaintiff 

of its common-law obligation to prove proximate causation. In a truly 

unprecedented legislative move, section 25(b)(2) allows a plaintiff to recover 

substantial civil damages from a defendant who not only was not the proximate 

cause of the plaintiff’s damages but who also has no relationship with or connection 

to the identified illegal drug user. It does this by empowering the plaintiff to 

arbitrarily select the most convenient defendant from within a specified geographic 

region, whether or not that defendant in any way contributed to the drug use at 

issue. In fact, even where it is known with perfect certainty that the named 

defendant did not contribute to the drug use, section 25(b)(2) would still permit the 

plaintiff not only to proceed but also to prevail against that defendant. This is 

because it is no defense under section 25(b)(2) to have played no contributing role 

whatsoever in the relevant drug use. And once a defendant has been named, section 

25(b)(2) then permits the plaintiff to recover from that person substantial monetary 

damages, including economic damages, noneconomic damages, exemplary 

damages, attorney fees, and costs of suit. 

¶ 35 To repeat, “[s]ubstantive due process bars governmental action that infringes 

upon a protected interest when such action is itself arbitrary.” Pepitone, 2018 IL 

122034, ¶ 13. Here, section 25(b)(2) not only allows but actually invites a person 

injured by another person’s illegal drug use to recover substantial economic 

damages from persons having no connection to or nexus with that drug use. It is 

difficult to conceive of a civil liability statute more unreasonable or arbitrary than 

this, and we therefore affirm the trial court’s finding that section 25(b)(2) of the Act 

is facially unconstitutional. 

¶ 36 In opposition to this result, plaintiff argues that this court has rejected similar 

due process challenges to civil liability statutes that, like section 25(b)(2), 

dramatically depart from established common-law principles of causation. For 

example, plaintiff points to the Dramshop Act (235 ILCS 5/6-21 (West 2016)), 
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under which those injured by an intoxicated person have a cause of action against 

not only licensed liquor vendors who, by selling or giving alcohol to that person,

“causes the intoxication of such person,” but also any landlord or property owner 

who knowingly permitted his or her property to be used for the sale of that alcohol. 

Id. § 6-21(a). Similarly, plaintiff points to the Workers’ Compensation Act (820 

ILCS 305/1 et seq. (West 2016)), which “imposes liability without fault upon the 

employer and, in return, prohibits common law suits by employees against the 

employer.” Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 462 (1990). 

According to plaintiff, both the Dramshop Act and the Workers’ Compensation Act 

parallel section 25(b)(1), in that both dispense with traditional causation principles 

in favor a statutory scheme of no-fault liability. See, e.g., Charles v. Seigfried, 165 

Ill. 2d 482, 487 (1995) (“[t]he Dramshop Act has never imposed liability predicated 

on negligence or fault; rather, it imposes a form of ‘no-fault’ liability”); Meerbrey, 

139 Ill. 2d at 462. In other words, plaintiff argues that, if substantive due process 

allows for no-fault liability in both the dramshop and workers’ compensation

contexts, it should likewise allow for it in the illegal drug market context. 

¶ 37 The problem with plaintiff’s argument is that it overlooks an important and 

dispositive distinction between the Dramshop Act and the Workers’ Compensation 

Act, on the one hand, and section 25(b)(2) on the other. Namely, unlike section 

25(b)(2), both the Dramshop Act and the Workers’ Compensation Act require a 

direct and transactional relationship between the plaintiff and the defendant. The 

Dramshop Act does not permit someone injured by an intoxicated person to 

arbitrarily select and sue any area tavern, whether or not that tavern sold the alcohol 

at issue. On the contrary, actions under the Dramshop Act may be brought only 

against “any person, licensed under the laws of this State or of any other state to sell 

alcoholic liquor, who, by selling or giving alcoholic liquor, within or without the 

territorial limits of this State, causes the intoxication of such person.” (Emphasis 

added.) 235 ILCS 5/6-21(a) (West 2016). Likewise, the Workers’ Compensation 

Act does not permit an injured worker to recover compensation from any area 

employer, whether or not he or she actually works for that employer. Nor does it 

make an employer liable for every injury suffered by one its employees, even those 

injuries wholly unrelated to the employee’s work. On the contrary, under the 

Workers’ Compensation Act, an employer is liable only to its “own immediate 

employees” and to those contractors and subcontractors it “directly or indirectly 

engages,” and it is liable only for those injuries “arising out of and in the course of 
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the employment.” 820 ILCS 305/1(a)(3), (d) (West 2016). This is a far cry from 

section 25(b)(2), which, as we have already discussed, authorizes the recovery of 

substantial monetary damages from a defendant who has no known connection to 

the identified drug use and who, in some cases, will be known to have no 

connection whatsoever. Stated differently, even where they authorize no-fault 

liability, the Dramshop Act and the Workers’ Compensation Act still require proof 

of some degree of transactional relationship between the parties before liability will 

attach. By contrast, section 25(b)(2) requires no relationship between the parties 

whatsoever for liability to attach. From our perspective, that simply pushes past the 

limits of what substantive due process permits.

¶ 38 In reaching this result, we wish to state clearly that we are entirely sympathetic 

to the significant public policy challenges that drove the legislature to enact section 

25(b)(2) . The legislative findings set forth in section 10 of the Act paint a vivid and 

sobering picture of the steep costs to individuals, families, employers, the 

government, and society of coping with the illegal drug market, as well as of the 

significant barriers to obtaining compensation in a civil action under existing law 

for damages related to the distribution of illegal drugs. We acknowledge the reality 

of this problem. Even so, the law we make today is the law that will govern 

tomorrow, and we simply cannot countenance the sacrifice of fundamental legal 

principles, even when the cause is righteous. In Smith, 137 Ill. 2d at 266, we 

cautioned against accepting such sacrifices “merely because the defendants are 

members of the drug industry.” In the same way, and as tempting as it might be, we 

cannot close our eyes to the serious constitutional flaws in section 25(b)(2) merely 

because the defendants are alleged drug dealers.

¶ 39 II. Section 25(b)(1)—Direct Liability Provision

¶ 40 We now turn to section 25(b)(1) of the Act. Following the trial court’s ruling 

that section 25(b)(2) of the Act is facially unconstitutional, count I of plaintiff’s 

fifth amended complaint could proceed, if at all, only under section 25(b)(1) of the 

Act. Under section 25(b)(1), a plaintiff may seek damages from “[a] person who 

knowingly distributed, or knowingly participated in the chain of distribution of, an 

illegal drug that was actually used by the individual drug user.” 740 ILCS 

57/25(b)(1) (West 2016). 
- 14 - 

¶ 41 Defendant filed a motion for summary judgment arguing that plaintiff failed to 

present any evidence that could support a finding that Jatczak knowingly provided 

or distributed the illegal drugs from which Neuman fatally overdosed and, thus, no 

genuine issue of material fact existed. Plaintiff argued that section 25(b)(1) does 

not require proof that Jatczak provided the illegal drugs to Neuman on the date of 

death. The trial court granted defendant’s summary judgment motion. Plaintiff 

argues that the trial court erred in its reading of section 25(b)(1) and thus erred in 

granting summary judgment.

¶ 42 Summary judgment is appropriate “if the pleadings, depositions, and 

admissions on file, together with the affidavits, if any, show that there is no genuine 

issue as to any material fact and that the moving party is entitled to a judgment as a 

matter of law.” 735 ILCS 5/2-1005(c) (West 2016). Whether a material question of 

fact exists in this case is dependent, in the first instance, on what a plaintiff 

proceeding under section 25(b)(1) of the Act is required to prove. Because an issue 

of statutory interpretation is presented, and because it arises from a summary 

judgment motion, our standard of review is de novo. Perry v. Department of 

Financial & Professional Regulation, 2018 IL 122349, ¶ 30. 

¶ 43 The rules of statutory construction are well settled. Our primary objective is to 

ascertain and give effect to the intent of the legislature. Better Government Ass’n v. 

Illinois High School Ass’n, 2017 IL 121124, ¶ 22. The most reliable indicator of the 

legislature’s intent is the language employed in the statute, which must be given its 

plain and ordinary meaning. Id. Where the statutory language is clear and 

unambiguous, effect must be given to that language, without resort to extrinsic aids 

of statutory construction (In re Shelby R., 2013 IL 114994, ¶ 32) and without 

reading into the statute exceptions, limitations, or conditions that the legislature did 

not express (Moon v. Rhode, 2016 IL 119572, ¶ 22). 

¶ 44 The trial court clearly misread section 25(b)(1). Under the plain language of 

that statute, a plaintiff need only establish that the defendant “knowingly 

distributed, or knowingly participated in the chain of distribution of, an illegal drug 

that was actually used by the individual drug user.” 740 ILCS 57/25(b)(1) (West 

2016). But under the trial court’s reading of section 25(b)(1), a plaintiff would be 

required to establish not only that proposition, but in cases where the drug user died 

from a drug overdose, the plaintiff would also be required to establish that the 
- 15 - 

person knowingly distributed, or knowingly participated in the chain of distribution 

of, the illegal drug that caused the overdose. Nothing in the plain language of 

section 25(b)(1) supports the trial court’s reading, and no rule of construction 

permits a court to rewrite a statute to include additional elements. See Zahn v. 

North American Power & Gas, LLC, 2016 IL 120526, ¶ 15. 

¶ 45 In response to this, defendant argues that, unless section 25(b)(1) is read to 

require proof that the drugs the defendant supplied to the drug user caused the fatal 

overdose, section 25(b)(1), like section 25(b)(2), will be rendered unconstitutional 

because it negates any showing of causation. We disagree. As discussed above, the 

fatal defect in section 25(b)(2) is not the elimination of proximate cause but rather 

the recovery of civil damages from a defendant having absolutely no connection to 

the identified drug use. Section 25(b)(1) suffers from no such defect. On the 

contrary, to recover under that section, a plaintiff must prove that the defendant 

“knowingly distributed, or knowingly participated in the chain of distribution of, an 

illegal drug that was actually used by the individual drug user.” (Emphasis added.) 

740 ILCS 57/25(b)(1) (West 2016). Thus, unlike section 25(b)(2), section 25(b)(1) 

imposes liability only in cases in which the parties have an existing and proven 

transactional connection. Nothing about this is arbitrary, and nothing about it 

allows a plaintiff to shop from a pool of strangers and choose whom from among 

them to hold responsible for the claimed injuries. 

¶ 46 In this way, section 25(b)(1) closely resembles the Workers’ Compensation

Act, the constitutionality of which this court has long upheld. See Moushon v. 

National Garages, Inc., 9 Ill. 2d 407, 412 (1956); Grand Trunk Western Ry. Co. v. 

Industrial Comm’n, 291 Ill. 167, 173 (1919). In both instances, the legislature 

concluded as a matter of public policy that certain relationships should carry with 

them liability rules previously unknown at common law. In the workers’ 

compensation context, the legislature recognized the difficulty facing workers who 

sought damages under traditional negligence principles where the employer could 

assert the defenses of contributory negligence, assumption of risk, and the fellow 

servant rule. To remedy this and to ensure an acceptable guaranteed level of 

compensation for injured workers, the Workers’ Compensation Act eliminates 

these defenses while simultaneously limiting an employee’s right to claim certain 

elements of common-law negligence. The net effect is a “no-fault” liability system 

for the employer/employee relationship, a system this court has consistently 
- 16 - 

deemed “a reasonable exercise of the legislature’s police power for the promotion 

of the general welfare.” Moushon, 9 Ill. 2d at 412. In much the same way, the 

legislature has now recognized that traditional common-law negligence principles 

create an undue barrier to compensation for persons injured by another’s illegal 

drug use. See 740 ILCS 57/10(7) (West 2016). To remedy this, and to ensure both a 

greater likelihood of recovery for such persons and a greater exposure to liability 

for the associated drug dealers, section 25(b)(1) imposes civil liability on everyone 

in the illegal drug user’s supply chain, irrespective of traditional common-law

conceptions of fault. The net effect is a “no-fault” liability system for the illegal 

drug dealer/illegal drug user relationship, and we regard this system every bit the 

“reasonable exercise of the legislature’s police power for the promotion of the 

general welfare” as we do the workers’ compensation system.

¶ 47 For these reasons, we reject both the trial court’s insertion of a proximate cause 

element into section 25(b)(1) and defendant’s argument that the absence of such an 

element renders the provision unconstitutional under the due process clause. 

Section 25(b)(1) is constitutional as written, and we therefore reverse the trial 

court’s decision granting defendant’s motion for summary judgment on count I of 

plaintiff’s fifth amended complaint. 

¶ 48 CONCLUSION

¶ 49 For the reasons stated, we affirm the trial court’s decision finding section 

25(b)(2) of the Act unconstitutional and severing it from the Act, reverse the trial 

court’s decision granting defendant’s motion for summary judgment on count I of 

plaintiff’s fifth amended complaint, and remand the cause to the trial court for 

further proceedings consistent with this opinion. 

¶ 50 Affirmed in part, reversed in part, and remanded. 

¶ 51 JUSTICE BURKE, concurring in part and dissenting in part: 

¶ 52 The majority holds, and I agree, that section 25(b)(2) of the Drug Dealer 

Liability Act (740 ILCS 57/25(b)(2) (West 2016)) is unconstitutional. Section 
- 17 - 

25(b)(2) is an extraordinary provision. It imposes on a defendant who 

“participates” in an illegal drug market the burden of entirely compensating a 

plaintiff for injuries resulting from an individual drug user’s illegal drug use, so 

long as the defendant’s “participation” took place within two years and within the 

same Illinois representative district as the illegal drug use and so long as the 

defendant’s “participation” was “connected with the same type” of illegal drug 

used by the individual drug user. Id.; see id. § 15. Section 25(b)(2) does not restrict 

the compensatory burden placed on an illegal drug dealer to his proportionate share 

of the illegal drug market, thereby limiting his liability, at least in principle, to his 

share of the total aggregate injuries he actually caused. See, e.g., Smith v. Eli Lilly 

& Co., 137 Ill. 2d 222, 237 (1990); Richard W. Wright, Once More Into the 

Bramble Bush: Duty, Causal Contribution, and the Extent of Legal Responsibility, 

54 Vand. L. Rev. 1071, 1131-32 (2001). Nor does section 25(b)(2) merely create a 

monetary fine, equally imposed on all illegal drug dealers. Instead, section 25(b)(2) 

places the plaintiff’s entire compensatory burden on a single defendant. And it does 

this without requiring the plaintiff to prove the defendant actually distributed any 

illegal drugs or even attempted to distribute any illegal drugs5

; without requiring 

the plaintiff to prove the defendant’s conduct was a cause-in-fact of the plaintiff’s 

injuries under the substantial factor test, the but-for test, or any other test of 

cause-in-fact; and without requiring the plaintiff to prove the defendant was 

engaged in a joint enterprise, concerted action, or similar venture with any person 

whose actions were a cause-in-fact of the plaintiff’s injuries. In short, section 

25(b)(2) allows a plaintiff to recover full compensation from a defendant without 

requiring proof the defendant’s conduct was, in any respect or under any legal 

theory, a cause-in-fact of any injury to any person. Imposing the plaintiff’s entire 

compensatory burden on one person in this way is an arbitrary and oppressive 

exercise of state power. I therefore agree with the majority that section 25(b)(2) 

was enacted in violation of article I, section 2, of the Illinois Constitution (Ill. 

Const. 1970, art. I, § 2). 

 5

A defendant can be found to have “participated” in an illegal drug market merely by 

“agreeing” to possess with an intent to distribute, or even by merely “agreeing” to commit an act that 

is only “intended to” facilitate the marketing and distribution of an illegal drug. 740 ILCS 57/15 

(West 2016).
- 18 - 

¶ 53 For the same reasons, however, I would also hold that section 25(b)(1) (740 

ILCS 57/25(b)(1) (West 2016)) is unconstitutional. Section 25(b)(1) states that a 

plaintiff may seek damages from “[a] person who knowingly distributed, or 

knowingly participated in the chain of distribution of, an illegal drug that was 

actually used by the individual drug user.” Id. Just as with section 25(b)(2), there is 

no requirement under section 25(b)(1) that the plaintiff prove the defendant’s 

conduct was, in any way, shape, or form, a cause-in-fact of any injury to any 

person. Indeed, in some respects, section 25(b)(1) is even more extreme than 

section 25(b)(2). Section 25(b)(1) requires no proof of geographical or temporal 

proximity to the illegal drug use, nor does it require that the defendant’s 

participation in the chain of distribution involve, or be connected with, the same 

type of illegal drug actually used by the individual drug user. To illustrate the effect 

of this, consider the following. A drug dealer in Springfield, Illinois, sells an illegal 

marijuana cigarette to a drug user who smokes the cigarette without incident in the 

same town. A year-and-a-half later, a different drug dealer in Chicago sells heroin 

to the same drug user who, as result of ingesting the heroin in that town, dies. Under 

the plain language of section 25(b)(1), a plaintiff may sue the Springfield marijuana 

dealer for the injuries caused by the Chicago drug dealer’s sale of heroin to the drug 

user because the Springfield dealer knowingly distributed an illegal drug that was 

“actually used by the individual drug user.” Id. Section 25(b)(1) is equally as 

arbitrary and oppressive as section 25(b)(2) and equally as unconstitutional. 

Accordingly, I specially concur in part and dissent in part. 

¶ 54 JUSTICE NEVILLE joins in this partial concurrence, partial dissent.

¶ 55 JUSTICE THEIS, concurring in part and dissenting in part: 

¶ 56 I agree with the majority that section 25(b)(1) of the Drug Dealer Liability Act

(740 ILCS 57/25(b)(1) (West 2016)), the so-called “direct liability” provision, does 

not violate due process. I disagree with the majority that section 25(b)(2) of the Act

(id. § 25(b)(2)), the so-called “area liability” provision, violates due process. 

¶ 57 The fourteenth amendment to the United States Constitution (U.S. Const., 

amend. XIV) and article I, section 2, of the Illinois Constitution (Ill. Const. 1970, 

art I, § 2) provide that no person shall be deprived of life, liberty, or property 

without due process of law. Where a statute is challenged on due process grounds, 
- 19 - 

the initial step of our analysis is to determine whether the statute restricts or 

regulates a liberty or property interest. People v. Pepitone, 2018 IL 122034, ¶ 14; 

Chicago Teachers Union, Local No. 1 v. Board of Education of the City of Chicago, 

2012 IL 112566, ¶ 37 (“An initial requisite for a due process claim *** is the 

existence of a protected interest.”); see American Manufacturers Mutual Insurance 

Co. v. Sullivan, 526 U.S. 40, 59 (1999) (“Only after finding the deprivation of a 

protected interest do we look to see if the State’s procedures comport with due 

process.”).

¶ 58 The lead opinion inexplicably bypasses that step. The lead opinion states that 

the defendant “does not assert that section 25(b)(2) of the Act regulates or restricts 

a liberty interest that constitutes a fundamental right.” Supra ¶ 29. In fact, the 

defendant does not specifically identify what liberty interest is affected by the Act. 

The defendant argues that the area liability provision violates her due process rights 

because it “imposes an irrebuttable presumption of causation” and because it 

“imposes liability on a defendant without any showing that the defendant was a 

cause in fact or proximate cause of plaintiff’s injuries or damages.” From that, I 

gather that the defendant would claim a liberty interest in not being subject to such 

a presumption or a liberty interest in proof of causation. 

¶ 59 The majority rejects both claims. The lead opinion states that, rather than 

creating a presumption of causation, “the Act creates a new cause of action that 

does not require proof of causation.” Supra ¶ 32. Further, the lead opinion states 

that there is no vested interest in causation, which the legislature may modify or 

even abolish where it proves inadequate. Supra ¶ 33 (citing Smith v. Eli Lilly & Co., 

137 Ill. 2d 222, 271 (1990) (Clark, J., concurring in part and dissenting in part, 

joined by Calvo, J.).

¶ 60 Having dispensed with those possible liberty interests, however, the lead 

opinion does not directly offer a replacement. That is, the lead opinion does not 

address whether the Act affects a liberty interest at all but simply assumes that it 

does. Apparently, the putative liberty interest at stake is that of an illegal drug 

dealer in escaping liability to the family of a deceased illegal drug user when the 

dealer has, in the lead opinion’s view, “no connection to or nexus with” or no 

“direct and transactional relationship” with the user. Supra ¶¶ 35, 37. If such a 

“right” exists, I agree that it is far from fundamental. Thus, the proper gauge of the 
- 20 - 

Act’s constitutionality is the rational basis test. Pepitone, 2018 IL 122034, ¶ 14. 

Under that test, our inquiry is twofold. We must determine whether there is a 

legitimate state purpose behind the legislation. Id. If so, we must determine whether 

there is a rational relationship between that purpose and the means that the 

legislature has chosen to pursue it. Id.

¶ 61 The Act’s purpose is stated in section 5 of the Act: (1) “to provide a civil 

remedy for damages to persons in a community injured as a result of illegal drug 

use”; (2) “to shift, to the extent possible, the cost of the damage caused by the 

existence of the illegal drug market in a community to those who illegally profit 

from that market”; (3) “to establish the prospect of substantial monetary loss as a 

deterrent to those who have not yet entered into the illegal drug distribution 

market”; and (4) “to establish an incentive for drug users to identify and seek 

payment for their own drug treatment from those dealers who have sold drugs to the 

user in the past.” 740 ILCS 57/5 (West 2016). The lead opinion correctly states that 

“there is no question that the legislative purpose informing the Act is legitimate.” 

Supra ¶ 30. The only question before us, then, is whether there is a rational 

connection between that purpose and how the legislature has chosen to pursue 

it—namely, the area liability provision.

¶ 62 The lead opinion fails to see such a connection between the purpose of the Act 

and the area liability provision because the lead opinion fails to see a connection 

between plaintiffs and defendants sued under that provision. The lead opinion

states:

“In a truly unprecedented legislative move, section 25(b)(2) allows a plaintiff to 

recover substantial civil damages from a defendant who not only wasn’t the 

proximate cause of the plaintiff’s damages but who also has no relationship 

with or connection to the identified illegal drug user. It does this by 

empowering the plaintiff to arbitrarily select the most convenient defendant 

from within a specified geographic region, whether or not that defendant in any 

way contributed to the drug use at issue. In fact, even where it is known with 

perfect certainty that the named defendant did not contribute to the drug use, 

section 25(b)(2) would still permit the plaintiff not only to proceed but also to 

prevail against that defendant. This is because it is no defense under section 
- 21 - 

25(b)(2) to have played no contributing role whatsoever in the relevant drug 

use.” (Emphasis in original.) Supra ¶ 34. 

According to the lead opinion, “[i]t is difficult to conceive of a civil liability statute 

more unreasonable or arbitrary than this.” Supra ¶ 35. 

¶ 63 The plaintiff points to the fact that this court has rejected due process challenges 

to the Dramshop Act and the Workers’ Compensation Act—statutes that, like the 

Act, similarly depart from traditional causation principles. The lead opinion

summarizes the plaintiff’s argument: “[I]f substantive due process allows for 

no-fault liability in both the dramshop and workers’ compensation contexts, it 

should likewise allow for it in the illegal drug market context.” Supra ¶ 36. The 

lead opinion then asserts that that argument “overlooks an important and 

dispositive distinction” between the Dramshop Act and the Workers’ 

Compensation Act and the Act at issue in this case. Supra ¶ 37. According to the 

lead opinion, the former two require “proof of some degree of transactional 

relationship between the parties,” and the latter requires “no relationship between 

the parties whatsoever for liability to attach.” Supra ¶ 37. 

¶ 64 The lead opinion’s view of the relationship between drug dealers and drug users 

in the same community is not only naively narrow but also contrary to its 

acknowledgement that we must resolve any doubts in favor of the Act’s validity.

Supra ¶ 28 (citing People v. Rizzo, 2016 IL 118599, ¶ 23). The lead opinion refers 

to the legislature’s “numerous findings” in section 10 of the Act. Supra ¶ 15. The 

lead opinion’s brief summary of those findings fails to give them sufficient 

consideration. Here they are in their entirety: 

“The legislature finds and declares all of the following:

(1) Every community in the country is affected by the marketing and 

distribution of illegal drugs. A vast amount of State and local resources are 

expended in coping with the financial, physical, and emotional toll that 

results from the existence of the illegal drug market. Families, employers, 

insurers, and society in general bear the substantial costs of coping with the 

marketing of illegal drugs. Drug babies and parents, particularly those of 

adolescent illegal drug users, suffer significant non-economic injury as 

well.
- 22 - 

(2) Although the criminal justice system is an important weapon against 

the illegal drug market, the civil justice system can and must also be used. 

The civil justice system can provide an avenue of compensation for those 

who have suffered harm as a result of the marketing and distribution of 

illegal drugs. The persons who have joined the illegal drug market should 

bear the cost of the harm caused by that market in the community. 

(3) The threat of liability under this Act serves as an additional deterrent 

to a recognizable segment of the illegal drug network. A person who has 

non-drug related assets, who markets illegal drugs at the workplace, who 

encourages friends to become users, among others, is likely to decide that 

the added cost of entering the market is not worth the benefit. This is 

particularly true for a first-time, casual dealer who has not yet made 

substantial profits. This Act provides a mechanism for the cost of the injury 

caused by illegal drug use to be borne by those who benefit from illegal 

drug dealing.

(4) This Act imposes liability against all participants in the illegal drug 

market, including small dealers, particularly those in the workplace, who 

are not usually the focus of criminal investigations. The small dealers 

increase the number of users and are the people who become large dealers. 

These small dealers are most likely to be deterred by the threat of liability.

(5) A parent of an adolescent illegal drug user often expends 

considerable financial resources, typically in the tens of thousands of 

dollars, for the child’s drug treatment. Local and state governments provide 

drug treatment and related medical services made necessary by the 

distribution of illegal drugs. The treatment of drug babies is a considerable 

cost to local and state governments. Insurers pay large sums for medical 

treatment relating to drug addiction and use. Employers suffer losses as a 

result of illegal drug use by employees due to lost productivity, employee 

drug-related workplace accidents, employer contributions to medical plans, 

and the need to establish and maintain employee assistance programs. 

Large employers, insurers, and local and state governments have existing 

legal staffs that can bring civil suits against those involved in the illegal 
- 23 - 

drug market, in appropriate cases, if a clear legal mechanism for liability 

and recovery is established.

(6) Drug babies, who are clearly the most innocent and vulnerable of 

those affected by illegal drug use, are often the most physically and 

mentally damaged due to the existence of an illegal drug market in a 

community. For many of these babies, the only hope is extensive medical 

and psychological treatment, physical therapy, and special education. All of 

these potential remedies are expensive. These babies, through their legal 

guardians and through court-appointed guardian ad litem, should be able to 

recover damages from those in the community who have entered and 

participated in the marketing of the types of illegal drugs that have caused 

their injuries.

(7) In theory, civil action for damages for distribution of illegal drugs 

can be brought under existing law. They are not. Several barriers account 

for this. Under existing tort law, only those dealers in the actual chain of 

distribution to a particular user are sued. Drug babies, parents of adolescent 

illegal drug users, and insurers are not likely to be able to identify the chain 

of distribution to a particular user. Furthermore, drug treatment experts 

largely agree that users are unlikely to identify and bring suit against their 

own dealers, even after they have recovered, given the present requirements 

for a civil action. Recovered users are similarly unlikely to bring suit 

against others in the chain of distribution, even if they are known to the 

user. A user is unlikely to know other dealers in the chain of distribution. 

Unlike the chain of distribution for legal products, in which records 

identifying the parties to each transaction in the chain are made and shared 

among the parties, the distribution of illegal drugs is clandestine. Its 

participants expend considerable effort to keep the chain of distribution 

secret.

(8) Those involved in the illegal drug market in a community are 

necessarily interrelated and interdependent, even if their identity is 

unknown to one another. Each new dealer obtains the benefit of the existing 

illegal drug distribution system to make illegal drugs available to him or 

her. In addition, the existing market aids a new entrant by the prior 
- 24 - 

development of people as users. Many experts on the illegal drug market 

agree that all participants are ultimately likely to be indirectly related. That 

is, beginning with any one dealer, given the theoretical ability to identify 

every person known by that dealer to be involved in illegal drug trafficking, 

and in turn each of those others known to them, and so on, the illegal drug 

market in a community would ultimately be fully revealed. 

(9) Market liability has been created with respect to legitimate products 

by judicial decision in some states. It provides for civil recovery by 

plaintiffs who are unable to identify the particular manufacturer of the 

product that is claimed to have caused them harm, allowing recovery from 

all manufacturers of the product who participated in that particular market. 

The market liability theory has been shown to be destructive of market 

initiative and product development when applied to legitimate markets. 

Because of its potential for undermining markets, this Act expressly adopts 

a legislatively crafted form of liability for those who intentionally join the 

illegal drug market. The liability established by this Act grows out of but is 

distinct from existing judicially crafted market liability.

 (10) The prospect of a future suit for the costs of drug treatment may 

drive a wedge between prospective dealers and their customers by 

encouraging users to turn on their dealers. Therefore, liability for those 

costs, even to the user, is imposed under this Act as long as the user 

identifies and brings suit against his or her own dealers. 

(11) Allowing dealers who face a civil judgment for their illegal drug 

marketing to bring suit against their own sources for contribution may also 

drive a wedge into the relationships among some participants in the illegal 

drug distribution network. 

(12) While not all persons who have suffered losses as a result of the 

marketing of illegal drugs will pursue an action for damages, at least some 

individuals, guardians of drug babies, government agencies that provide 

treatment, insurance companies, and employers will find such an action 

worthwhile. These persons deserve the opportunity to recover their losses. 

Some new entrants to retail illegal drug dealing are likely to be deterred 
- 25 - 

even if only a few of these suits are actually brought.” 740 ILCS 57/10 

(West 2016). 

¶ 65 The lead opinion acknowledges that those findings “paint a vivid and sobering 

picture of the steep costs to individuals, families, employers, the government, and 

society of coping with the illegal drug market, as well as of the significant barriers 

to obtaining compensation in a civil action under existing law for damages related 

to the distribution of illegal drugs.” Supra ¶ 38. In fact, the findings do more than 

paint a picture; they draw an unmistakable link between drug dealers and drug users 

in a community. 

¶ 66 The legislature highlighted the intentionally clandestine nature of the illegal 

drug market and, more importantly, the interrelatedness and interdependence of 

those involved in that market. 740 ILCS 57/10(7), (8) (West 2016). Referencing 

expert opinion, the legislature expressly found that all participants in the 

market—all dealers and all users—are likely to be linked. Id. § 10(8). Dealers at all 

levels together have created a demand for illegal drugs, as well as a supply chain to 

serve that demand. Id. In light of that reality, the legislature sought to undermine 

the entire illegal drug market by adopting a new form of liability—market liability. 

Id. § 10(9). Persons who have entered the illegal drug market in a community, who 

participate in and build that market and ultimately benefit from it, should bear the 

costs of the harm caused by that market to that community. Id. § 10(2), (3), (4). The 

legislature decided that liability should be imposed against a dealer “within the 

illegal drug market target community” of the user (id. § 25(b)(2)(A)) “connected 

with the same type of illegal drug” consumed by the user (id. § 25(b)(2)(B)) “at any 

time during the *** user’s period of illegal drug use” (id. § 25(b)(2)(C)). Liability 

attaches only when there is clear and convincing evidence that the defendant dealer 

participated in the illegal drug market (id. § 60(a)) at a specific place for a specific 

drug during a specific time. 

¶ 67 The connection between plaintiffs and defendants sued under section 25(b)(2) 

was demonstrably apparent to the legislature. It should be just as apparent to this 

court. See People ex rel. Lumpkin v. Cassidy, 184 Ill. 2d 117, 124 (1998) (“The 

judgments made by the legislature in crafting a statute are not subject to courtroom 

fact finding and may be based on rational speculation unsupported by evidence or 

empirical data.” (citing Cutinello v. Whitley, 161 Ill. 2d 409, 421-22 (1994))). So 
- 26 - 

too, should the constitutional nexus between the area liability provision and the 

purpose of the Act. See In re J.W., 204 Ill. 2d 50, 72 (2003) (“If there is any 

conceivable basis for finding a rational relationship, the statute will be upheld.”); 

Rizzo, 2016 IL 118599, ¶ 45 (“If any state of facts can reasonably be conceived of 

to justify the enactment, it must be upheld.”).

¶ 68 In reaching the opposite conclusion, the lead opinion announces that “we 

simply cannot countenance the sacrifice of fundamental legal principles, even 

when the cause is righteous.” Supra ¶ 38. As support, the lead opinion cites Smith, 

137 Ill. 2d at 266, where the court purportedly “cautioned against accepting such 

sacrifices.” Supra ¶ 38. The lead opinion’s reliance upon Smith in that regard is 

puzzling. In Smith, this court declined to adopt a form of market liability, stating 

that such a significant change in the common law is “most appropriate for the 

legislature to develop, with its added ability to hold hearings and determine public 

policy.” Smith, 136 Ill. 2d at 262-63. Our holding in Smith was not couched in 

constitutional terms, and nothing in that case suggests that the legislature could not 

endorse such a market-share approach to liability without offending our federal or 

state constitutions. To the contrary, everything in that case suggests that only the 

legislature could do so. See also Nicholas Reiter, Dollars for Victims of a 

“Victimless” Crime: A Defense of Drug Dealer Liability Acts, 15 J.L. & Pol’y 

1329, 1344 (2007) (“[W]hile critics of the [Model Drug Dealer Liability Act] 

contend that the statute is a departure from traditional tort law and compromises 

fundamental principles of justice, the notion that the legislature may, and should, 

create a remedy for plaintiffs who have been injured but who are barred from 

recovery under the common law is an established principle of legislative 

behavior.”); Steed v. Bain-Holloway, 2015 OK CIV APP 68, ¶ 27, 356 P.3d 62 

(Bell, J., dissenting) (stating that enactment of the Model Drug Dealer Liability Act 

is “ ‘a matter for the legislative body and not the courts’ ” (quoting Case v. 

Fibreboard Corp., 743 P.2d 1062, 1067 (Okla. 1987))). It is a bait and switch to 

make such a statement in Smith and then retract it in the name of judicial 

legislation.

¶ 69 The lead opinion fundamentally misunderstands our role when it casually 

comments about “the law we make today.” Supra ¶ 38. The Illinois Supreme Court 

does not make laws. The Illinois General Assembly does. “[P]rimary expression of 

Illinois public and social policy should emanate from the legislature.” Charles v. 
- 27 - 

Seigfried, 165 Ill. 2d 482, 493 (1995). Here, the legislature, through its adoption of 

the Act, has spoken. The legislature considered the role of dealers in sustaining the 

illegal drug market; the heavy toll that market exacts from individuals, families, 

employers, government, and society at large; and the inability of our current system 

of civil justice to provide a remedy for persons injured through another’s use of 

illegal drugs. Although section 25(b)(2) of the Act pushes the boundary of civil 

liability by dispensing with traditional notions of causation, it cannot be said that 

the means that the legislature has chosen to advance the state’s legitimate interest in 

dealing with the significant and costly impact of the illegal drug market is not

rationally related to that interest.

¶ 70 The rational basis standard is highly deferential to the legislature’s will. Our 

duty is to uphold the constitutionality of the Act if reasonably possible to do so. 

Rizzo, 2016 IL 118599, ¶ 23. I believe that it is more than reasonably possible to do 

so. I would hold that section 25(b)(2) of the Act does not violate substantive due 

process and reverse the decision of the trial court. 

¶ 71 JUSTICE KILBRIDE joins in this partial concurrence, partial dissent.